SHANNON EDWARD EWELL
v.
SUSAN A. TRAINOR
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When a legal guardian has been appointed for an incompetent person, process must be served on the guardian, and failure to do so deprives the court of personal jurisdiction over the incompetent person, rendering any judgment void.
[1] When a legal guardian has been appointed for an incompetent person, service of process in any action against the incompetent person must be made on the guardian pursuant…
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Join FLexlaw to unlock all legal intelligence“Proper service of process is indispensable for the court to have personal jurisdiction over the incompetent person, unless properly waived, even though the court may have subject matter jurisdiction.”
Court explaining the requirement for service on a guardian of an incompetent person
In 2017, Susan A. Trainor obtained a final judgment of injunction for protection against stalking against Shannon Edward Ewell. Unknown to the trial c…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SHANNON EDWARD EWELL,
Appellant,
v. Case No. 5D19-1115
SUSAN A. TRAINOR,
Appellee.
________________________________/
Opinion filed October 11, 2019
Appeal from the Circuit Court for Brevard County, Michelle Vitt Baker, Judge.
Gregory W. Eisenmenger and R. Scott Robinson, of Eisenmenger, Robinson, Blaue & Peters, P.A., Viera, for Appellant.
No Appearance for Appellee.
PER CURIAM.
In 2017, Susan A. Trainor obtained a final judgment of injunction for protection against stalking violence against Shannon Edward Ewell. Although Ewell was served with process and appeared at the final hearing, unbeknownst to the trial court, several years earlier, a different division of the same circuit court had found Ewell to be incapacitated and appointed a limited guardian of his person. Among the rights removed from Ewell was the right to “make informed decisions regarding the right to sue, or assist
When a legal guardian has been appointed for the incompetent person, process against the incompetent person must be served on the legal guardian as provided in section 48.031, Florida Statutes. § 48.042(1)(a), Fla. Stat. (2017). That did not occur here. Proper service of process is indispensable for the court to have personal jurisdiction over the incompetent person, unless properly waived, even though the court may have subject matter jurisdiction. See Drake v. Wimbourne, 112 So. 2d 27, 29 (Fla. 2d DCA 1959) (explaining that statutes must be strictly complied with when service of process is to be effected on incompetent person). Until proper service of process is made on the incompetent person, there can be no determination of the parties’ adverse claims. See Bussey v. Legislative Auditing Comm., 298 So. 2d 219, 221 (Fla. 1st DCA 1974).
The trial court never properly obtained personal jurisdiction over Ewell in this matter. As a result, the final injunction should have been set aside pending proper service of process. For these reasons, we reverse the trial court’s order and remand for further proceedings.
REVERSED and REMANDED.
ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bussey v. The Legis. Auditing Comm. OF the Legis. of the State of Fla., 298 So. 2d 219 (Fla. 1st DCA 1974)
- Drake v. Wimbourne, 112 So. 2d 27 (Fla. 2d DCA 1959)